Findlaw Case Summaries: Criminal Law. March 9 – 13, 2009. 13

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March 9 – 13, 2009:

U.S. Supreme Court, March 09, 2009 Vermont v. Brillon, No. 08-88 The Vermont Supreme Court’s reversal of Defendant’s domestic violence conviction is reversed, where the Vermont Supreme Court held that delays attributable to Defendant’s assigned counsel denied Defendant a speedy trial, but assigned counsel, just as retained counsel, act on behalf of their clients, and delays sought by counsel are ordinarily attributable to the defendants they represent.

U.S. 1st Circuit Court of Appeals, March 12, 2009 US v. Rivera-Maldonado , No. 07-1426
Judgment against defendant for possession of child pornography is vacated where: 1) in plain error, the magistrate judge relied on the plea agreement and erroneously told defendant that the maximum possible period of supervised release was three years, and did not inform defendant that he could be sentenced to lifetime supervised release; 2) the error affected defendant’s substantial rights as he has shown a reasonable probability that he would not have entered the guilty plea if he understood that it would lead to a lifetime of supervised release; and 3) the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. Case is remanded with instructions that defendant be permitted to withdraw his guilty plea.

U.S. 1st Circuit Court of Appeals, March 12, 2009 US v. Arbour, No. 07-1979
Sentence for drug and firearms offenses is affirmed where the district court did not commit clear error in holding that defendant was involved in a criminal activity that was extensive and that he qualified as a leader or organizer of the criminal activity, thereby invoking an increase in his offense level under the Sentencing Guidelines.
U.S. 1st Circuit Court of Appeals, March 13, 2009 US v. Rodrigue , No. 08-1359
Conviction for drug offenses is affirmed where the court did not err in denying defendant’s motion to suppress evidence seized pursuant to a state search warrant as the affidavit submitted by law enforcement in support of the requested search warrant recited facts showing a clear and substantial connection between the illegal activity and the place searched, establishing probable cause.

U.S. 2nd Circuit Court of Appeals, March 09, 2009 US v. Owens , No. 07-4966 Petition for panel rehearing on the issue of whether defendant’s motion for a new trial was timely is denied where the motion is still pending before the district court and thus the district court is in the best position to decide whether defendant’s pro se motion for a new trial was timely under Rules 33 and 45(b) of the FRCP.

U.S. 2nd Circuit Court of Appeals, March 11, 2009 US v. Pitcher, No. 05-3182 District court’s grant of defendant’s motion to vacate his sentence due to ineffective assistance of counsel is reversed where the district court’s holding is contrary to this court’s previous ruling on direct appeal that any error in counsel’s advice to his client resulted from defendant’s own dishonesty in dealing with his attorney rather than from ineffective assistance.

U.S. 2nd Circuit Court of Appeals, March 12, 2009 Yauri v. US, No. 08-1105 Sentence for money laundering is vacated and remanded for resentencing where counsel’s failure to challenge the pre-sentence report for its omission of an applicable two-level reduction for global disposition constitutes ineffective assistance. Counsel’s failure to challenge the loss calculation amount should also be considered on remand.

U.S. 3rd Circuit Court of Appeals, March 10, 2009 Fontroy v. Beard, No. 07-2446 In an action involving the First Amendment rights of prisoners, district court’s judgment is reversed where the defendant’s new prison mail policy requiring attorneys and courts to affix control numbers to mail sent to inmates is reasonably related to legitimate penological interests and thus does not unconstitutionally infringe on First Amendment rights, as there is a rational connection between the mail policy and the prison’s interest in prison security and safety.

U.S. 3rd Circuit Court of Appeals, March 13, 2009 US v. Dullum , No. 07-4502 Sentence for mail and bank fraud is affirmed where: 1) the district court did not err in applying sentencing enhancements for loss amount greater than $30,000, vulnerable victim, abuse of trust, and obstruction of justice under the sentencing guidelines; and 2) did not abuse its discretion in varying from the pre-sentence report recommendation in granting only a one-level deduction in sentencing level for acceptance of responsibility.

U.S. 4th Circuit Court of Appeals, March 09, 2009 Willenbring v. US, No. 07-6152 The dismissal of Petitioner’s habeas petition with respect to the judgment of a military court is affirmed, where Petitioner: 1) did not completely terminate his military service following the charged conduct; and 2) the phrase “on active duty” in Article 2(d) of the Uniform Code of Military Justice refers to both regular and reserve duty in the Army.

U.S. 4th Circuit Court of Appeals, March 12, 2009 US v. Heath, No. 07-4715 Defendant’s robbery and firearms sentence is affirmed, where the District Court’s decision to grant the government’s motion for upward departure under 18 U.S.C. section 3553(a) was reasonable given Defendant’s recidivist tendencies.

U.S. 4th Circuit Court of Appeals, March 13, 2009 US v. Hatcher, No. 07-4839 Defendants’ convictions for failing to register or update their registrations as sex offenders under the Sex Offender Registration and Notification Act (SORNA) are reversed, where SORNA’s registration requirements did not apply to Defendants at the time they committed the acts giving rise to their indictments.

U.S. 5th Circuit Court of Appeals, March 09, 2009 Avila v. Quarterman, No. 07-70028 The denial of Petitioner’s habeas petition in a capital murder case is affirmed, where an expert witness who testified for the state had no duty to disclose potentially exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), because he was not a member of the prosecution team.

U.S. 5th Circuit Court of Appeals, March 10, 2009 Haynes v. Quarterman, No. 07-70004 Denial of Petitioner’s habeas petition is reversed, where the trial court adjudicated Petitioner’s objection to the prosecution’s peremptory challenge based solely on the paper record, without observing the challenged witness.

U.S. 5th Circuit Court of Appeals, March 10, 2009 US v. Ortiz-Gomez, No. 08-40292 Defendant’s sentence for being found in the U.S. following an order of removal is vacated, where Defendant’s prior Pennsylvania conviction for making a terroristic threat was not a “crime of violence” under U.S.S.G. section 2L1.2(b)(1)(A)(ii) because it did not involve the threat of force against the person of another.

U.S. 5th Circuit Court of Appeals, March 12, 2009 US v. Hearn, No. 08-30369 Defendants’ drug convictions are affirmed, where: 1) the evidence against Defendant that was initially unlawfully seized was later obtained via a search warrant based on independent information; and 2) the police had probable cause to arrest another Defendant because there was a reasonable probability that Defendant was a player in the drug enterprise.

U.S. 6th Circuit Court of Appeals, March 09, 2009 US v. Hunter, No. 07-3698 Defendant’s drug and firearm conviction is affirmed in part, where there was sufficient evidence to show Defendant’s possession of the drugs at issue, but reversed in part, where the District Court incorrectly instructed the jury on a nonexistent “possession of a firearm during a drug offense” charge. .

U.S. 6th Circuit Court of Appeals, March 09, 2009 Demis v. Sniezek, No. 07-4129 Dismissal of Petitioner’s habeas petition as moot is affirmed, where, as Petitioner sought a transfer to a different correctional facility, he was granted the transfer and later released while his petition was pending.

U.S. 6th Circuit Court of Appeals, March 09, 2009 US v. Blue, No. 07-5296 Defendant’s drug distribution sentence is affirmed, where the District Court recognized its discretion to reduce Defendant’s sentence based on substantial assistance and chose not to do so.

U.S. 6th Circuit Court of Appeals, March 11, 2009 Cornwell v. Bradshaw, No. 06-4322 The denial of Petitioner’s habeas petition in a death penalty matter is affirmed, where the state court was not unreasonable in finding that the allegedly deficient performance of Petitioner’s counsel, in failing to explain the medical condition that made Petitioner overweight, did not prejudice Petitioner.

U.S. 6th Circuit Court of Appeals, March 12, 2009 US v. Medina-Almaguer, No. 07-4254 Defendant’s sentence for reentry into the U.S. following removal is vacated, where there was insufficient evidence that Defendant’s prior state court conviction was a “drug trafficking offense” that would subject him to the sentencing enhancement applied by the District Court.

U.S. 7th Circuit Court of Appeals, March 11, 2009 US v. Lee, No. 06-3029 Convictions for conspiracy to commit money laundering and interstate facilities conspiracy claim is reversed in part and affirmed in part where: 1) the evidence is insufficient to support a conviction of money laundering as the disputed costs are essential regular expenses that do not constitute proceeds within the meaning of the statute and the jury received insufficient instructions; 2) there is sufficient evidence to show defendant joined the interstate facilities conspiracy with full knowledge and intent; and 3) witness testimony against co-defendant Myung Ok Lee did not unfairly prejudice and any error in its admission was harmless. Sentence is vacated and remanded for resentencing based on an accurate guideline calculation.

U.S. 7th Circuit Court of Appeals, March 11, 2009 US v. Hodge , No. 06-3458 Sentence for conspiring to operate a racketeering enterprise through interstate and conspiracy to commit money laundering is affirmed in part and reversed in part where the plaintiff’s imprisonment was appropriate under statutory sentencing guidelines, but the forfeiture of assets conflicted with the guidelines. Co-defendant Kubly’s racketeering conviction is affirmed and money laundering conviction reversed and remanded where the evidence is insufficient to show what defendant did with the business’s net revenues and the jury did not receive proper instructions.

U.S. 7th Circuit Court of Appeals, March 11, 2009 Allen v. Buss, No. 07-2486 In an appeal of a death penalty sentence, district court’s denial of plaintiff’s habeus petition is affirmed in part and reversed in part where: 1) the ruling that defendant could not relitigate his claims in light of the Supreme Court ruling in Atkins, which categorically banned the execution of the mentally retarded, because the lower courts had already considered evidence of defendant’s mental retardation as a mitigating factor, was contrary to the holding in Atkins recognizing that there is a difference between using mental retardation as a mitigating factor and excluding mentally retarded persons from the death penalty altogether; and 2) the court correctly rejected plaintiff’s argument under Eddings that he should have received a new penalty phase hearing before a jury and his argument that his statements were taken in violation of Miranda. Case is remanded to district court for an evidentiary hearing on plaintiff’s Atkins claim to address whether he is mentally retard! ed under Indiana law.

U.S. 7th Circuit Court of Appeals, March 11, 2009 US v. Williams , No. 07-3004 Conviction for distribution of crack cocaine is affirmed where the record does not support a finding that defendant’s substantial rights were affected by any error in accepting his jury waiver without ensuring the waiver was knowing and intelligent.

U.S. 7th Circuit Court of Appeals, March 11, 2009 US v. Irby , No. 08-1307 Conviction for drug crimes is affirmed where: 1) the evidence presented at trial was sufficient to sustain his conviction for possession with intent to distribute more than five grams of crack; and 2) defendant failed to show his substantial rights were affected by the admission of out of court statements made by a confidential informant.

U.S. 7th Circuit Court of Appeals, March 12, 2009 US v. Richardson , No. 08-1243 In a criminal sentencing action, appeal of district court’s dismissal of defendant’s rule 35(b) motion for lack of jurisdiction is dismissed where defendant cannot file a rule 35 (b) motion and also cannot compel the government to file a Rule 35(b) motion authorizing a reduction in the length of defendant’s sentence for his assistance in investigating or prosecuting another person. Sentence is affirmed where the government’s refusal to file the motion reducing his sentence unless defendant waived his right to appeal his conviction is rationally related to a legitimate government end.

U.S. 7th Circuit Court of Appeals, March 12, 2009 US v. Farinella , No. 08-1839 Conviction and sentence for introducing into interstate commerce a misbranded food with intent to defraud and wire fraud is reversed where the government presented insufficient evidence that the defendant engaged in misbranding food and is thus entitled to be acquitted.

U.S. 7th Circuit Court of Appeals, March 12, 2009 US v. Watson , No. 08-1938 Conviction for illegal possession of guns and ammunition is affirmed where the evidence was legally seized by police in response to a semi-anonymous tip that gave them reasonable suspicion that the car contained weapons, and the police also had an independent legal basis for stopping the car.

U.S. 7th Circuit Court of Appeals, March 12, 2009 US v. Sawyer, No. 08-2236 Sentence for conspiracy to distribute methamphetamine is affirmed where: 1) district court did not err in refusing to issue an instruction on defendant’s defense of duress to the jury; 2) district court did not abuse its discretion by excluding testimony of two defense witnesses; and 3) defendant’s sentence is not unreasonable.

U.S. 7th Circuit Court of Appeals, March 13, 2009 US v. Washington , No. 07-4067 Sentence for conspiracy to distribute cocaine is affirmed where: 1) district court acted appropriately when it found the facts that supported co-defendant Bennett’s mandatory minimum sentence; and 2) there was sufficient evidence to support the conclusion that guns found at co-defendant’s residence were connected with his drug-dealing activities. Case is remanded for the limited purpose of correcting the wording of the judgment.

U.S. 8th Circuit Court of Appeals, March 09, 2009 US v. Miller , No. 07-3067 In a proceeding to revoke defendant’s supervised release, district court’s revocation order and sentence is affirmed where: 1) the court did not err in rejecting defendant’s collateral attack on the conditions of his supervised release provision; 2) there was sufficient evidence to establish defendant violated the special conditions of his release; 3) the new sentence was within statutory limits, under its discretionary authority, and not substantively unreasonable; and 4) district court did not abuse its discretion by requiring as a condition of release that defendant comply with tax laws and pay outstanding taxes.

U.S. 8th Circuit Court of Appeals, March 09, 2009 US v. Miller , No. 07-3073 Order revoking defendant’s supervised release and sentence for failure to file employment-tax returns or pay employment taxes is affirmed where: 1) district court did not abuse its discretion in imposing a special condition of supervised release requiring defendant to pay her tax obligations; and 2) district court did not abuse its discretion by imposing a thirteen-month sentence of imprisonment after revoking probation.

U.S. 8th Circuit Court of Appeals, March 09, 2009 US v. Hartstein, No. 08-1092 Sentence for fraud is affirmed where: 1) the record adequately supports the district court’s findings for the loss calculation amount; 2) any claim that defendant’s attorney rendered ineffective assistance of counsel cannot be addressed on direct review and should be addressed in a 28 U.S.C. section 2255 proceeding; and 3) defendant’s challenge to the restitution order was waived as it was not raised in the initial appeal.

U.S. 8th Circuit Court of Appeals, March 10, 2009 US v. Stennis-Williams, No. 08-2461 Conviction and sentence for mail fraud is affirmed where: 1) the district court did not err in refusing to give defendant credit for money she returned after the fraud was discovered for purposes of calculating her offense level under statutory guidelines; 2) the district court did not err by including the estate’s investigative costs in its restitution calculation; and 3) the restitution order did not impermissibly interfere with the contractual rights of the parties to the civil settlement agreement.

U.S. 8th Circuit Court of Appeals, March 11, 2009 US v. McKinzie , No. 08-2326 Sentence for making a false statement on a passport application is affirmed where district court gave an adequate justification for the upward variance in his sentence from the advisory Guidelines range and the sentence is not substantively unreasonable.

U.S. 8th Circuit Court of Appeals, March 12, 2009 US v. Harris , No. 08-2203 Conviction for possession of crack cocaine with intent to distribute is affirmed where: 1) the district court properly denied defendant’s motion to suppress evidence as there was probable cause to support the warrant authorizing the search; 2) there was no error in allowing defendant’s probation officer to testify to the contents of his probation file; and 3) utility records were admissible as evidence to rebut witness testimony. .

U.S. 8th Circuit Court of Appeals, March 12, 2009 US v. Septon , No. 08-2306 Sentence for bank fraud and conspiracy to commit mail and bank fraud is affirmed where district court did not err in applying the sophisticated means enhancement or the abuse-of-trust enhancement under the Sentencing Guidelines.

U.S. 9th Circuit Court of Appeals, March 09, 2009 US v. Boulware, No. 05-10752 Defendant’s tax evasion conviction is affirmed, where the District Court properly denied Defendant’s request for a “return of capital” instruction because Defendant’s offer of proof did not satisfy the requirement that the corporate distribution at issue exceed the taxpayer’s basis in stock.

U.S. 9th Circuit Court of Appeals, March 09, 2009 Rodis v. City and County of San Francisco, No. 05-15522 In a 42 U.S.C. section 1983 action based on an alleged false arrest, the District Court’s denial of qualified immunity to Defendant-Officers is reversed, where Defendants’ belief that a bill used by Plaintiff was counterfeit was reasonable.

U.S. 9th Circuit Court of Appeals, March 09, 2009 US v. McFall, No. 07-10034 Defendant’s extortion conviction is reversed where the government did not prove that Defendant attempted to “obtain” the alleged victim’s property within the meaning of the Hobbs Act, because decreasing a competitor’s chance of winning a contract does not amount to obtaining a transferable asset for oneself.

U.S. 9th Circuit Court of Appeals, March 09, 2009 US v. Streich, No. 07-30105 Defendant’s child molestation sentence is affirmed where: 1) the government did not violate its plea agreement with Defendant by recommending a longer sentence based on uncharged offenses; and 2) Defendant’s claim that he could be civilly committed based on the charged conduct was unripe.

U.S. 9th Circuit Court of Appeals, March 09, 2009 US v. Brobst, No. 07-30284 Defendant’s child pornography conviction is affirmed, where the reasonableness of a search and seizure does not depend on state law, but rather on the traditional standards of reasonableness; but Defendant’s sentence is vacated, where his concurrent sentences for child pornography possession and receipt violated the Double Jeopardy Clause.

U.S. 9th Circuit Court of Appeals, March 09, 2009 US v. Franco-Flores, No. 08-10101 Defendant’s drug and firearm sentence is affirmed, where Defendant’s deferred sentence on a state drug charge, to which he pleaded guilty, contained a “custodial or supervisory component” such that the state court disposition constituted a “criminal justice sentence” under U.S.S.G. section 4A1.1(d).

U.S. 9th Circuit Court of Appeals, March 10, 2009 US v. Krstic, No. 08-30022 The dismissal of Defendant’s indictment for making false statements on immigration forms is reversed, where 8 U.S.C. section 1546(a) does not require proof of an already forged, counterfeited, altered, or falsely made immigration document.

U.S. 9th Circuit Court of Appeals, March 11, 2009 Fisher v. San Jose, No. 04-16095 In a 42 U.S.C. section 1983 action based on a warrantless arrest, judgment as a matter of law for Plaintiff is reversed, where, during an armed standoff, once exigent circumstances justify the warrantless seizure of the suspect, and so long as the police are actively engaged in completing his arrest, the police need not obtain a warrant.

U.S. 9th Circuit Court of Appeals, March 11, 2009 US v. Hilgers, No. 08-30078 Sentence for fraud in connection with obtaining mortgage loans is affirmed, where: 1) the Defendant has no right to a sentence based on the Sentencing Guidelines; and 2) there was a significant showing of potential loss to others if Defendant remained at large.

U.S. 9th Circuit Court of Appeals, March 11, 2009 US v. Hammons, No. 08-50329 Drug sentence is reversed, where the District Court failed to articulate the reasons for the sentence and relied on an incorrect Sentencing Guideline range in imposing it.

U.S. 9th Circuit Court of Appeals, March 13, 2009 Johnson v. Walton, No. 07-55935 In a 42 U.S.C. section 1983 action alleging an illegal search, judgment for Plaintiffs is reversed where Defendant-officer was entitled to qualified immunity because she had probable cause to believe that information regarding Plaintiffs’ prostitution operation would be located in their home.

U.S. 11th Circuit Court of Appeals, March 10, 2009 Singh v. USAG, No. 08-10780 Petitioner’s petition for review of the BIA’s order removing him from the U.S. is dismissed, where a state’s conviction of a minor in adult court is considered a conviction for the purposes of 8 U.S.C. section 1101(a)(48)(A).

U.S. 11th Circuit Court of Appeals, March 11, 2009 Keungne v. USAG, No. 07-14501 Petitioner’s petition for review of the BIA’s order removing him from the U.S. is dismissed, where the Petitioner’s removal based on his act of “moral turpitude” was proper because Georgia’s reckless conduct statute requires a sufficiently culpable mental state to fall into that category.

Supreme Court of California, March 09, 2009 People v. Wagner , No. S156537 Court of Appeals order voiding the challenged probation revocation and sentencing proceeding and vacating the sentence imposed at that proceeding is affirmed where: 1) defendant had a choice to request speedy sentencing rights based on his probation violation under either section 1203.2a or section 1381 of the Penal Code; and 2) when a trial court fails to comply with the 90-day time requirement of section 1381, it must dismiss the pending probation revocation proceeding.

Supreme Court of Texas, March 11, 2009 Weir v. State, No. PD-0616-08 The trial court’s order requiring Defendant to pay court costs is affirmed where the trial judge need not orally pronounce the imposition of court costs on a convicted defendant to include the costs in its written judgment.

Supreme Court of Texas, March 11, 2009 Schmidt v. State, No. PD-0076-08 Defendant’s conviction for retaliation by threat is reversed where the prosecution alleged that Defendant struck his victim, and the trial court erred by failing to instruct the jury on the lesser included offenses of assault causing bodily injury and assault by threatening to cause imminent bodily injury.

California Appellate Districts, March 09, 2009 People v. Roa, No. B201676 Conviction for use of a firearm in a carjacking is affirmed where the victims’ repeated, consistent out-of-court identifications constituted substantial evidence of defendant’s use of a firearm in the carjacking.

California Appellate Districts, March 10, 2009 People v. E.S., No. A118547 Denial of a motion for a new jurisdictional hearing is reversed and remanded for ineffective assistance of counsel where: 1) defendant counsel’s performance was deficient and fell below an objective standard of reasonableness under prevailing professional norms; and 2) as a result of defendant counsel’s deficient performance, the jurisdictional proceedings were fundamentally unfair and unreliable.

California Appellate Districts, March 10, 2009 People v. Camacho, No. B207048 Conviction for robbery is affirmed where a clerical error in the verdict form does not affect the validity of the verdict as the record unambiguously demonstrated the charge was robbery, and not carjacking, and the jury’s intent to convict on robbery was unmistakably clear.

California Appellate Districts, March 10, 2009 People v. Dean , No. E041513 Judgment and order committing defendant to the State Department of Mental Health as a sexually violent predator is affirmed where: 1) there was no reversible error in allowing plaintiff’s experts to testify to inadmissible hearsay; and 2) the appointment of only one expert for defendant did not violate his due process rights as he was fully able to present his side of the story to the trier of fact and fundamental fairness was accorded.

California Appellate Districts, March 11, 2009 People v. Bankers Ins. Co. , No. D052080 In an action involving bail bond, order denying defendant’s motion to vacate a forfeiture and exonerate its bond is reversed where the trial court failed to fulfill its statutory obligation of an oral bail forfeiture declaration. .

California Appellate Districts, March 11, 2009 People v. Harris, No. D052257 Sentence for drug crimes is reversed and remanded where the trial court failed to grant defendant mandatory probation under Proposition 36 based on the express jury finding that he transported the cocaine base for his personal use.

California Appellate Districts, March 12, 2009 In re Smith , No. B207324 In an appeal of a parole determination, superior court’s order granting plaintiff’s petition for writ of habeas corpus is reversed where evidence existed to support a conclusion that plaintiff is unsuitable for parole because she is currently dangerous, including the aggravated circumstances of the commitment offense and her lack of insight into her criminal behavior, as well as her failure to take responsibility for her past violent conduct.

California Appellate Districts, March 12, 2009 People v. Garcia, No. C054729 Conviction for murder and possession of a deadly weapon is affirmed where there was error in using defendant’s assertion of his Fourth and Fifth Amendment rights as evidence of guilt, but the error was harmless beyond a reasonable doubt.

California Appellate Districts, March 12, 2009 People v. Williams , No. F053858 Conviction and sentence for failure to register as a sex offender is affirmed where there was sufficient evidence to support a conclusion that appellant was residing in Madera upon his release from parole and failed to register as a sex offender within the requisite five working days. ..